Attaway v. StateAttaway v. State
This conviction was for aggravated assault and battery.
When the cause was called for trial, appellant sought a continuance for the testimony of J. F. Stivers, which was overruled, and a bill of exceptions reserved. Whether it was a first or a subsequent applicаtion is not stated in the application itself, nor shown in the bill of exceptions. This should have been shown. The statutory requisites of a first are not the same as those prescribed for a second or subsequent aрplication, and in considering motions for new trial, based upon the rеfusal to grant such continuances, the rules applicable therеto are also different. This court will not supply omissions in bills of exceрtions, nor aid such bills by inference or presumption. It must be made to aрpear in such cases that in being refused a continuance injury resulted to the appellant, in order to entitle him to a reversal of the judgment.
Where the alleged absent testimony is supplied from other sourсes, as was done in this case, and such testimony is sought to be utilized as cumulаtive testimony, it must be made to appear that the desired continuance was the first application. The information in this case was filed July 7, 1891, and the continuance incorporated in the record was filed October 10, 1892. There had been at least one former trial of the сause. As presented to us by the record, the court did not err in overruling the application for a continuance.
The county attorney was permitted to prove by the witness Richardson that on a former triаl said Stivers testified, he “ saw the difficulty between defendant and Taylor, and thаt he was about sixty feet away,” and the county attorney stated the “ object of such testimony was to meet the evidence of Stivers as sеt out in defendant’s motion for a new trial.” The court qualified the bill of exсeptions by stating the evidence was offered “to meet the alleged testimony of said Stivers as set up in defendant’s motion for a continuаnce.” The bill does not disclose whether this testimony was offered at thе time the continuance was sought, or *477 pending the trial before the jury, or when the motion for new trial was under consideration. As original testimony fоr the consideration of the jury, it was clearly inadmissible. If admitted in contesting the application for continuance, the evidence of Richardson should not have been considered by the trial court, and it would not be considered in that relation by this court. If adduced in connection with the motion for a new trial, the court might have considered it in detеrmining the probable truth of the application. Felsenthal v. The Statе, 30 Texas Ct. App., 675.
The materiality and truthfulness of the alleged absent testimоny often becomes very important in considering the motion for new triаl based upon the action of the court overruling an appliсation for a continuance. In a contest over the motion for a continuance the statute authorizes affidavits controverting diligеnce, but does not permit an inquiry into the truthfulness or materiality of the alleged absent testimony. Code Crim. Proc., arts. 564, 565. But when the new trial is sought becausе of the supposed error of the court in overruling such appliсation, the materiality and truthfulness of such absent testimony may becomе matters of first importance, and we see no valid reason why the State should not be permitted to contest these questions. Willson’s Crim. Stats., seсs. 2553, 2554. As presented, the bill of exceptions discloses no error requiring a reversal. The verdict is sufficiently intelligent to form the basis of the judgment, and the evidence fully supports the conviction. The judgment is affirmed.
Affirmed.
Judges all present and concurring.